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Owners of “Happy Together” lose Florida copyright case

Another court in another state has ruled that pre-1972 copyrights are NOT protected by state copyright law – and they never have been. The Florida Supreme Court, following in the footsteps of New York State’s appellate court, has ruled that its state law, which governs sound recordings made before 1972, doesn’t include a right to control public performances in sound recordings, including radio plays. Commentators said that both this decision and the reasoning behind it are good news for digital broadcasters and possibly their radio listeners, but less so for the owners of copyrights.

As readers will be aware, there is an unusual position in the USA when it comes to paying for the use of sound recordings on the radio – there is no such payment due from ‘traditional’ radio stations, and AM/FM radio has never paid royalties for using sound recordings, whether on current hits or ‘golden oldies’ either. This changed in 1972 with new satellite and digital broadcasters liable to pay – but a number of copyright owners and in particular Flo & Eddie, former members of 1960s group The Turtles, argued that pre-1972 recordings would be protected by state law, so a royalty WAS payable, and brought legal actions in California, New York and Florida, after broadcasters including Pandora and satellite broadcaster Sirius XM decided that while they had to pay royalties to artists and labels on post-1972 catalogue, that wasn’t the case for older tracks.

The copyright owners argued that state law provided for a general performing right for sound recordings and in 2014 the courts in California sided with Flo & Eddie on this point. And at first instance so did the courts in New York, prompting both Pandora and Sirius to reach settlements with the major labels. Sirius also reached a deal with Flo & Eddie, though subject to various outstanding court cases on the issue, especially in New York and Florida. The New York appellate court then reversed the decision at first instance and Florida’s Supreme Court has now concurred with that and the earlier ruling in Florida that said there is no performing right for sound recordings under Florida’s copyright laws.

Judge Charles Canady said: “Flo & Eddie essentially asks this court to recognise an unworkable common law right in pre-1972 sound recordings that is broader than any right ever previously recognised in any sound recording. Doing so would require this court to, among other things, ignore the lengthy and well-documented history of this topic – something we decline to do”.

“Florida common law has never previously recognised an exclusive right of public performance for sound recordings. To recognise such a right for the first time today would be an inherently legislative task. Such a decision would have an immediate impact on consumers beyond Florida’s borders and would affect numerous stakeholders who are not parties to this suit”.

In the last of the three jurisdictions involved, the Californian Supreme Court will revisit the issue in litigation involving Pandora, and if this court follows the other decisions, those settlements must surely be in doubt.

Despite the rulings, what might be more important to copyright owners are moves in Washington to firstly apply federal copyright law across the board so ALL broadcasters have to pay for sound recordings they use, and secondly have the general performing right extended back to pre-1972 recordings.